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TMI Blog2015 (10) TMI 727X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessed appears incongruous to the earlier stand of the appellant that come what may it was not in a position to deposit anything. - if the pre-deposit amount as directed on 7-9-2012 is deposited along with interest at the rate of 9% per annum from 7-9-2012 within a maximum period of 30 days from today, the Tribunal shall proceed to adjudicate the appeal on merits - Partial stay granted. - Tax Case No. 28 of 2014 - - - Dated:- 5-1-2015 - Navin Sinha, ACJ. and Manindra Mohan Shrivastava, J. Shri Anumeh Shrivastava, Counsel, for the Appellant. Shri Maneesh Sharma, Counsel, for the Respondent. ORDER We have heard Counsel for the appellant and the respondent. 2. The appellant assails order dated 24-1-2014 passed by the Customs, Excise Service Tax Appellate Tribunal (hereinafter called the Tribunal ) in Excise Appeal No. 914 of 2012. The Tribunal, by the impugned order declined to interfere with its earlier order dated 10-7-2013 dismissing the appeal upon failure of the appellant to comply the interim order 7-9-2012 granting waiver of pre-deposit under Section 35F of the Central Excise Act (hereinafter called the Act ) to the extent of 50% only of the Excise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... next submitted that amendment had been made in Section 35F of the Act with effect from 6-8-2014 and he was ready to deposit 7 % of the duty as assessed by the authorities. The appeal may be restored subject to that condition and directed to be disposed on merits. Reliance has been placed on an order dated 30-10-2014 by a Division Bench of the Rajasthan High Court in Civil Miscellaneous Writ Petition No. 10740 of 2014. 7. Learned Counsel for the respondent opposing the appeal submitted that under Section 35F of the Act, pre-deposit is required to be made as directed by the Tribunal on basis of the assessment of duty made by the authorities. The order dated 7-9-2012 granting waiver of pre-deposit to the extent of 50% of the duty assessed is well considered and reasoned. No undue hardship was demonstrated by the appellant before the Tribunal. No prejudice can be said to have been caused to the appellant if Appeal No. 565 of 2012 was not listed along with Appeal No. 914 of 2012 on 7-9-2012. The appellant did not comply the interim order dated 7-9-2012 and on the contrary filed an application for modification of the order. The modification application also made out no ground of undu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... support of the submissions. Directions were therefore given for waiver of 50% of the duty amount to be deposited within a period of 12 weeks subject to which recovery shall remain stayed. The time for deposit was also suited according to the convenience of the appellant as mentioned in the order itself. The Tribunal thus displayed adequate consideration to the appellant. 11. The appellant then filed an application seeking review/modification of the order dated 7-9-2012. The Act does not provide for any review jurisdiction in the Tribunal. Nonetheless the Tribunal did consider the application. Notwithstanding the fact that no one appeared for the appellant to press the application, the Tribunal suo motu on 30-1-2013 extended the time for pre-deposit by another eight weeks. We have gone through the application for review/modification. Suffice it to observe that it does not make out any case for undue hardship by pleading of facts in support of the same. A bald pleading has been made that there can be no hard and fast rule and the appellate authority was required to consider balance of convenience, financial hardship, irreparable injury while considering prayer for pre-deposit. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re the Tribunal seeking pre-deposit waiver. Merely because, we may have the power to take a different view in the matter as a superior Court cannot be sufficient justification to interfere with the discretionary order passed within jurisdiction unmindful of the interests of the revenue as also mandated under Section 35F of the Act. 16. The appellant has had more than sufficient opportunity to demonstrate any undue hardship and which it has failed to do. It has till date, by filing successive applications after 7-9-2012 evaded payment of duty assessed as far back as 27-12-2011 and even avoided deposit of 50% of the duty assessed granted to it by waiver. 17. Undoubtedly, the Division Bench of the Madras High Court in the case of Mr. Md. Shaffiq (supra) did consider fresh materials placed before it and opined to grant appropriate relief rather than remanding the matter to the Tribunal but the facts of the present case are completely distinguishable from the nature of conduct attributable to the appellant himself when the Tribunal has granted indulgence to it on more than one occasion. Likewise, in the case of M/s. Prosafe International (supra), the subsequent amendment on 6-8-20 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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